Labor at a Crossroads: Can Broadened Civil Rights Law Offer Workers a True Right to Organize?

It's one way to allow victims of anti-union discrimination to sue in federal court for compensatory and punitive damages.

(AP Photo/Alex Sanz)

U.S. Representative John Lewis, Democrat of Georgia, is co-sponsoring, with Rep. Keith Elison of Minnesota, legislation that would broaden the Civil Rights Act to include workers who are discriminated against for wanting to join a union. Lewis, shown here on December 22, 2014, discusses the historical film Selma and civil rights in the United States during an interview in Atlanta. Forty-nine years after Lewis and other marchers tried to cross the Edmund Pettus Bridge in Selma, Alabama, memories of "Bloody Sunday" are still vivid in his mind. It was one of the defining moments of the civil rights era.

Organized labor, which represents only 1 in 15 private sector workers, is on its deathbed. The National Labor Relations Act of 1935, which was supposed to allow workers to choose to organize, “is dead and not coming back,” Harold Meyerson reports. The NLRA was designed to protect worker rights in part by prohibiting employers from exerting the power to fire union organizers, but the penalties for violating the law are so weak that employees routinely do so, making it exceedingly difficult to organize.

Worse, efforts to strengthen the NLRA under Presidents Lyndon Johnson, Jimmy Carter, Bill Clinton, and Barack Obama have all failed.

As a result, Meyerson notes in “The Seeds of a New Labor Movement,” several creative and impressive alternative ideas have surfaced. David Rolf recently headed a campaign that won a $15 minimum wage for workers in Seattle. In 2010, Ai-jen Poo worked in New York to pass a state-level Domestic Workers Bill of Rights that protects them from harassment and guarantees paid sick days. Karen Nussbaum, with the backing of the AFL-CIO, has organized 3.3 million members of Working America to bring about larger progressive political change.

All of these efforts represent important innovations that should be replicated but, as Meyerson notes, they are no substitute for a strong labor movement. It is a big step forward to increase the minimum wage to bring the working poor into the working class, for example, but we also need organized labor to move working-class Americans into the middle class. Winning legislation for domestic workers produces important gains but does not create a financially self-sustaining model akin to that provided by dues-paying union members.

So is there a third way—a path to strengthening organized labor and its funding model without trying to pass the kind of traditional labor law reforms that four Democratic presidents failed to get through Democratic congresses?

In our 2012 book, Why Labor Organizing Should Be A Civil Right, we advance a new approach: extending the Civil Rights Act of 1964, which now protects against discrimination based on race, sex, national origin and the like, to include workers discriminated against for trying to form a union. The Civil Rights Act allows victims of discrimination to sue in federal court for compensatory and punitive damages, and therefore provides a much stronger deterrent to law breaking than the NLRA, which limits remedies to back pay and reinstatement.

In July 2014, U.S. Representatives Keith Ellison and John Lewis, stalwarts for civil rights and labor, introduced the Employee Empowerment Act to extend civil rights remedies to labor organizers, and reinforce the connection between civil rights and worker rights. (The bill garnered an additional 17 cosponsors.)

Some in the labor movement balk at the efforts to employ the language of individual rights to unions, which emphasize group solidarity over individual needs. But the language of rights has long been associated with organized labor, most vividly in the 1948 Universal Declaration of Human Rights, which proclaims, “Everyone has the right to form and to join trade unions for the protection of his interests.”

Conservative opponents of labor unions have long understood the way in which rights resonate with American voters, which is why they have cloaked anti-worker legislation in the duplicitous language of “right to work.” The great advances in liberal legislation over the past half century have repeatedly invoked individual rights: women’s rights, civil rights, and gay rights. As each of these movements has demonstrated, the rhetoric of individual rights can be harnessed to promote the collective good of groups.

Given anti-worker majorities in both houses of the U.S. Congress, the Ellison-Lewis legislation is unlikely to move forward any time soon. But advocates of making labor organizing a civil right can follow the lead of innovators like David Rolf and Ai-jen Poo to pass local and state initiatives.

Courts have held that the Wagner Act pre-empts state and local labor legislation for employees covered by the NLRA, but there are more than 25 million employees who are not covered by the Act who could therefore benefit from making labor organizing a civil right. These non-covered employees include 19.2 million state and local employees, 2.8 million civilian federal workers, 2.7 million agricultural laborers, and more than 700,000 domestic workers. Though many states have statutes that protect public employees' rights to organize and bargain collectively, we have seen broad attempts to erode these rights over recent years. Furthermore, public employees in many states do not have the legal right to organize and bargain collectively.

Making labor organizing a civil right at the state and local level for these groups could build momentum for eventual federal civil rights legislation for all workers once a friendlier Congress comes to power. Moreover, building a movement around “labor rights as civil rights” could galvanize millennials to add worker rights to the great triumphs of “Seneca Falls and Selma and Stonewall,” as President Obama memorably put it. Young people may have missed the chance to be part of the great civil rights protests of the 1950s and 1960s, but they may yearn to be part of a new civil rights movement to rebuild organized labor and revive the American middle class.